RISE: FOI Questions Remain Unanswered

RISE - Scotland's Left Alliance has today reiterated its call for the Scottish Information Commissioner (SIC) to clarify her approach to 'purdah' rules governing civil servant impartiality during the election.

At the weekend, RISE Glasgow candidate James McEnaney revealed that he had received an email from the SIC which suggested that the Freedom of Information (FOI) watchdog had - citing 'purdah' - delayed an FOI request until after the election in order to protect Scottish Ministers from criticism.

Commenting, McEnaney said:

"The SIC still has key questions to answer.

"On three separate occasions, and in writing, SIC officers confirmed that they factored the risk of releasing information critical of ministers into their decision making process.

"This clearly violates the spirit and the letter of FOI legislation.

"Moreover, purdah rules are completely irrelevant to the SIC, which is not a civil service organisation, and have never before been invoked by the SIC to delay an appeal. So why now? What is it about this particular request, at this time, that provoked such an unusual reaction?

"In an attempt to clarify this situation, we have submitted an FOI request to the SIC asking that material relevant to this decision be released.

"To be clear, we are not claiming definitively that Rosemary Agnew has done anything wrong at this stage. It looks as though a decision has been taken which is inappropriate and unjustifiable, and we'd like to know why.

"There may be a perfectly good explanation for the SIC's behaviour.

"But if there is, it hasn't been provided yet.

"With the Holyrood election less than six weeks away, it is a matter of democratic urgency that this issue is comprehensively addressed."

The text of James McEnaney's opinion piece in today's Daily Record.

IN JUST 37 days Scotland goes to the polls to choose its new government. Of course, the whole electoral process depends on one, utterly vital commodity – information.

We need to know who is standing and what they stand for to select our next batch of representatives but we also need to be able to hold the existing government to account. If we don’t know how our government conduct themselves, then no amount of campaign slogans or glossy manifesto pledges will fill the democratic void we’re left with.

Fortunately, we have laws which exist to facilitate this process – Freedom of Information (FOI). FOI allows us to ask official bodies – including the Government – to release information we consider to be in the public interest. Often such organisations attempt to block the publication of material and, if an initial appeal fails, it falls to the Scottish information commissioner (SIC) to decide if the information should published.

In recent years, FOI disclosures have shone a light on the £7million of bonuses paid by public sector bodies in Scotland, the extent of corporate interest in fracking, serious concerns over safety at the Faslane nuclear base, and the fact the Fife police division being investigated over the death of Sheku Bayoh faced assault allegations almost every fortnight. SIC interventions have also ensured that a number of extremely serious stories – such as government “feedback” leading to changes in a Scottish Police Authority report on officers carrying firearms – could not remain hidden from the people.

The SIC is, then, a hugely important feature of Scottish public life, charged with protecting the interests of the people and ensuring that government cannot prevent us from accessing information to which we are entitled. But what if the opposite happened? What if the SIC hindered rather than helped accountability, openness and, ultimately, democracy?

In an extraordinary turn of events, that seems to be precisely what has happened.

In November, the website CommonSpace revealed that the SNP’s plan to impose standardised testing on schools was based on just four emails from two individuals. This information was given to me after an FOI request to the Scottish Government. Unfortunately, the emails were censored as the Scottish Government attempted to keep the contents secret.

The case was therefore taken to the SIC, who accepted the legitimacy of my appeal and a final decision was expected within weeks. But then everything changed.

Last Tuesday morning, I received an email informing me that the SIC had “decided not to issue any decisions that might put forward a critical view of the ministers” prior to the Holyrood election. The email continued: “In discussion with the head of enforcement, it has been decided to delay the issue of the decision on your case until after May 5, 2016.”

Put simply, the information I have requested may be uncomfortable for the Scottish Government so, even if the SIC agrees that it should be released, she intends to withhold it until after the votes are counted. It doesn’t matter which political party you support – this is serious.

The people of Scotland need more information during an election campaign, not less, and it is clearly unacceptable for the SIC to initiate a policy that could lead to important information being withheld until it’s too late for voters to consider it. FOI is vital to the functioning of our democracy, as is the absolute impartiality of the SIC.

In this case, however, it at least appears that the SIC has made a political decision and, in doing so, potentially protected the Scottish Government from criticism during an election period. This is made all the more serious by the knowledge that purdah rules, which impose impartiality on civil servants during an election, do not apply to the SIC and have never before been invoked to delay the publication of material, critical or otherwise.

We must, therefore, ask: why now? What is it about this request that provoked such an unusual reaction? We must also guard against any attempts to normalise this sort of situation or dismiss it as “typical politics”.

FOI is supposed to protect citizens from secretive governments and unaccountable public bodies, not shield politicians from difficult questions in the weeks before an election. It is a right we must defend, even if that means scrutinising the very people who should be on our side.